Opinion
CV 23-01462 PHX DLR (CDB)
12-18-2023
Alencar Reis Andrade, Jr., Petitioner, v. John E. Cantu, Fred Figueroa, United States Attorney for the District of Arizona, Respondents.
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge.
Petitioner Alencar Reis Andrade, who was then detained at the Eloy Detention Center, filed a petition pursuant to 28 U.S.C. § 2241 on July 25, 2023. (ECF No. 1). Petitioner seeks an order requiring his release from INS custody. In their response to the petition, Respondents assert Petitioner's claims are without merit and that Petitioner was under a final order of removal issued August 22, 2023. (ECF No. 9 at 1-2; ECF No. 9-1). Respondents aver that Petitioner was removed from the United States on or about September 14, 2023. (ECF No. 14). An order sent to Petitioner on December 5, 2023, was returned to the Court as undeliverable, with the notation that Petitioner is no longer in custody. (ECF No. 13).
Under Article III of the United States Constitution, federal courts may adjudicate only actual, ongoing cases or controversies. Deakins v. Monaghan, 484 U.S. 193, 199 (1988). Where the Court can no longer grant effective relief it lacks jurisdiction and must dismiss a case as moot. See, e.g., Abdala v. Immigration & Naturalization Serv., 488 F.3d 1061, 1063 (9th Cir. 2007); Flores-Torres v. Mukasey, 548 F.3d 708, 710 (9th Cir. 2008). A § 2241 petitioner's release from detention does not necessarily moot their petition. See Abdala., 488 F.3d at 1063. However, when the only relief sought by the petitioner has been awarded, there is no longer a live “case or controversy” before the Court and there is no relief the Court can grant the petitioner. See Flores-Torres, 548 F.3d at 710 & n.3; Picrin-Peron v. Rison, 930 F.2d 773, 776 (9th Cir. 1991) (finding that, where the petitioner sought only release from custody and they had been released, the petition was properly dismissed).
Accordingly, because Petitioner has been removed from the United States and is no longer in custody, IT IS RECOMMENDED that the petition at ECF No. 1 be dismissed as moot.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the “district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” However, such certificates are only required in cases concerning detention arising out of process issued by a state court, or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. See 28 U.S.C. § 2253(c)(1). This case arises under 28 U.S.C. § 2241, and does not attack a state court detention or a federal criminal judgment or sentence. Accordingly, no ruling on a certificate of appealability is required, and no recommendation thereon will be offered.